ICYMI: when FOIA, archiving, former governors and budget cuts collide

Want records from past governors? Get ready to wait. 

by Robert Zullo, Richmond Times-Dispatch, March 31, 2018
Want emails, voicemails, memos or other documents from former Gov. Terry McAuliffe’s administration that easily should have been obtainable under open records law while he was in office?
Get ready to wait. Maybe for a decade.
That’s what progressive blogger Jonathan Sokolow, a Northern Virginia attorney, found out when he filed a sweeping Freedom of Information Act request late last month. He was looking for records related to agreements McAuliffe’s administration signed for a pair of controversial infrastructure projects fast advancing to construction: Dominion Energy’s Atlantic Coast Pipeline and EQT Midstream Partners’ Mountain Valley Pipeline.
Sokolow, who has blasted the agreements, signed in December, as immunity deals that let the pipeline companies off the hook for potential damage to forests and waterways, sought any record related to their creation, from drafts of the agreements themselves to visitor and phone logs and calendars. And though Gov. Ralph Northam’s office gave him some emails and a memo on the deals sent to members of the General Assembly, Sokolow was directed to the Library of Virginia for any records that date to the McAuliffe administration.
In an email, Chad Owen, a spokesman for the library — which keeps correspondence and other records of Virginia’s governors, along with a host of other state records — told Sokolow that “all of the records of Gov. McAuliffe and his administration are awaiting cataloging and are therefore exempt from FOIA.”
“As such, we are not able to release them at this time,” Owen added.
When might they be catalogued, Sokolow asked.
“Cataloging is entirely dependent upon resources, particularly personnel,” Owen replied. “As such, no time frame can be reasonably given, as personnel leaving or being added to the workforce would radically affect the prospective time frame. I can say that at the moment we are still cataloging the Kaine administration’s records.”
Tim Kaine, now a U.S. senator and Hillary Clinton’s vice presidential pick for her unsuccessful run at the White House in 2016, left the governor’s mansion more than eight years ago. There have been two governors since, McAuliffe, who is a Democrat like Northam, and Republican Bob McDonnell, who held office from 2010 to 2014.
“I was stunned that taxpayers would be denied the right to access basic documents entered into by public officials for 10 years or more when those records are easily available if the commonwealth chooses to release them,” Sokolow said.
Nothing in statelawprevents the library from releasing the records, but it has rejected all such requests out of what it deems a sense of fairness — because ease or difficulty of fulfilling the request shouldn’t be a factor, officials said — and also to ensure the entire universe of responsive records is combed.
By attempting a search through the vast quantity of digital information before it is catalogued, which could find many relevant records but miss others, “we could be distorting the way the public business was actually transacted,” said Sandra Treadway, the state librarian. “That’s a huge risk for me and this agency.”
No one is happy about the backlog, Treadway said, describing it as the product of an increasing avalanche of electronic information and decreasing budgets and staff.
“It causes us great distress, too. Because we are committed to open government and transparency,” she said.
Roger Christman, the library’s governors’ records archivist, used to be among a staff of eight near the end of Gov. Mark Warner’s administration that has since been cut to four people, mirroring cuts across the library as a whole. Ten years ago, the library had 190 positions filled. At the end of January, it was down to 119.
“Every administration since Mark Warner, we’ve lost staff,” Christman said.
The library’s appropriation from the General Assembly, not including money that is passed through to local public libraries, shrank from more than $14.8 million in 2008 to about $12.6 million last year. Adjusted for inflation, however, the decrease over that time is even steeper.
“I feel like I’m between a rock and hard place. We really want to do what’s right all around and because of our situation, we’re not able to release this information right now,” Treadway said.
Megan Rhyne, executive director of the nonprofit Virginia Coalition for Open Government, said the library is in an “awkward position.”
“The library has them but they don’t necessarily know what’s in them,” she said of the gubernatorial records. “It’s the equivalent of having 1,700 boxes that have labels on them maybe.”
Rhyne said the library has been “gutted by past budgets,” with the effect of leaving the public in the dark about their governors’ work.
“If we’re to have understanding of how decisions, even recently made decisions, were made, they should be made available as soon possible,” she said.
When governorsleaveoffice, state law requires them to deliver “to the Library of Virginia for safekeeping all correspondence and other records” of their terms, though the law does not require them to transfer “records of a strictly personal nature or private nature or active files necessary for the transaction of business by the Office of the Governor.”
“Records delivered to the Library of Virginia shall be made accessible to the public once cataloging has been completed,” the law says.
Easier said than done, Christman said.
For one, the increasing volume of digital records, particularly email, which one might assume makes them easier to search and sort, has been a challenge.
When Warner left office, Christman said, the library got about 1,000 boxes of paper records. When McAuliffe left, that number was about 327.
“The real challenge is doing some sort of inventory of the electronic records,” Christman said.
The work of cataloging an administration’s record trail begins with identifying everyone who generated relevant documents.
For past month and a half, Christman has been working on an inventory of the “personal storage tables” related to the McAuliffe administration. Each table stores the email and other data of individual users in Microsoft Outlook, the system the administration uses for email, contacts and calendars.
“People leave during the administration and not everything is put where it’s nice and easy to find,” Christman said, adding that he tries his best to track changes in staff while governors are in office. “I have over 400 people who were in the administration. ... I keep track of who they are, where they are, where they’re working.”
That inventory has been finished for McDonnell’s administration, and includes some 8 million records.
“You can’t search across 8 million PST files,” Christman said.
Even if you could search the personal storage tables, “what search terms do you use?” he added. “It can be very tricky even searching in one box if you don’t have some idea of what you’re looking for.”
Some of Kaine’s emails have already been catalogued and posted online, using a digital asset management system that is fully text searchable.
“We’re still working on Governor Kaine’s records. We have not touched the McDonnell stuff except for that inventory we did to see what we have,” Christman said.
The library is experimenting with artificial intelligence, similar to what’s used in legal cases involving huge amounts of discovery information, Christman added, to see if machines can help sort and vet the gubernatorial records.
But that can never fully replace the human judgment needed to ensure the secrecy of things like operational security details — Kaine’s records might contain information that should remain private related to the Virginia Tech massacre, for example — or other sensitive information, including medical records and material subject to attorney-client privilege.
“We have to balance this great desire on our half to get this out there with doing it correctly,” Christman said. “There’s always going to be the need for some manual review for some parts of these electronic records.”
Getting back to a staff of eight would be a step in the right direction, Christman said, but even he couldn’t say how much of the delay that would fix, adding that backlogs in other archiving functions the library performs, such as for local governments, are also growing.
“Anything would help,” he said. “I couldn’t say how much we would be able to tackle. ... I’m not happy that we’re eight years behind with releasing governors’ records. The stuff that’s in these modern governors’ records are current events.”
The budget that the General Assembly will return to Richmond this month to hash out includes a $600,000 increase for the library to upgrade information technology systems that make digital catalogs available to the public, though it won’t help fix the gubernatorial backlog, Treadway said.
If the library could go back to eight people in Christman’s department, “we wouldn’t be able to do it overnight but we could make some real progress,” Treadway said.

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